"Farewell unhappy land for my heart bleeds in pity. Little
does it signify to us who are the conquered
or who are victorious, you are devoted to ruin to whoever succeeds." (Janet Shaw, from the History of Canada videos.)

INTRODUCTION:
SOME ARE MORE EQUAL THAN OTHERS

Over time, various agreements and pieces of
legislation have changed the face of North American Native-Body
Politic relations. Whether or not it has improved the position of
Indigenous people within the overall twenty-first century Canadian
political, economic and social landscape will probably be debated until
the next century. It is a fact, however, that as long Indigenous
negotiations continue to be hit and miss, there never will be a cohesive
understanding of how we are faring. Aboriginal Title continues to
be hotly debated with government pundits reluctant to cede to tribal
communities land bases, forestry, gas and mineral rights because they are
on traditional lands. Therefore, agreements have tended to lean
towards "splitting the difference" by negotiating limited partnerships
and profit-sharing that almost always benefits the ruling government, be
it federal or provincial.

"It is commonly thought that the watershed Supreme Court of Canada cases
on Aboriginal rights represent a gradual trend wherein Aboriginal
peoples have gained increasing protection under Canadian common
law....Despite judicial decisions dealing with Aboriginal rights under
section 35(1), the rights of Aboriginal peoples in Canada have not
gained greater protection and they certainly have not expanded to
encompass the right of self-determination." (Dalton,
Jennifer E.
Aboriginal Self-Determination in Canada: Protections Afforded by the
Judiciary and Government.
Canadian Journal of Law and Society - Volume 21, Number 1, 2006, pp.
11-37. University of
Toronto Press
)

Not all traditional lands are rich in natural
resources, therefore, those that are less profitable tend to be on the
margins of the negotiating table. Poverty continues to exist in
staggering numbers, violence toward women and children is still five
times the national average and urban Native populations aren't even
considered part of the mix.

"On the whole, the Government of Canada has been willing to recognise
the inherent right of self-determination as applied to Aboriginal
peoples. This is due to the changing legal status of who constitutes
"peoples" under international law and the role of the Canadian
government as a signatory to various relevant international covenants
and declarations, alongside more recent government policy statements and
developments in comprehensive land claims and self-government
negotiations. Ultimately, it is argued that the Canadian government has
tended toward higher levels of support for more extensive rights for
Aboriginal peoples than has the judiciary, and most notably, the Supreme
Court of Canada."
(Ibid.)

"In the past
ten years Canada has enacted a series of legislation in relation

This legislation is in the form of enabling
legislation: it permits First Nations upon entering into a variety of
agreements with the governments to assume some degree of control over
their lands, resources, moneys and development. Participation in this
enabling legislation is voluntary."

(

Annotated
bibliography: Aboriginal Self Determination: Are We There Yet? David K. Laidlaw, December 4, 2009

)

Has any of it advanced the cause of equal
justice and self-determination for Indigenous people? Again, some will
say yes, others, no. When original understandings were based on
lies and out-right theft, it is difficult for many Native people to
believe that their best interests are paramount. Let's face it,
the promise of reserve lands in a number of cases was not fulfilled for
the simple reason that the land was coveted for a variety of reasons by
the ruling government. Often , other territory, not in good locations
was provided unilaterally and with no compensation. Even this land
could be appropriated by the government or any other agency with
such powers if they so desired. For example, railroad companies
expropriated tribal lands freely, without compensation or consultation.
Some territories were often split in half so that the lines could be
pushed through. In other words, any treaties that were in place at the
time, were ruthlessly ignored in favour of European settlement.
The injustice was staggering, to say the least. Two recent historical
periods change that prevailing attitude.

"Canada
virtually abandoned its Treaty commitments to ensure First Nations'
harvesting rights. In Ontario, for example, all enforcement was left to
the provincial government and Canada has never intervened in any court
case there to support Treaty rights. In the prairie provinces, the
Supreme Court found that First Nations' commercial harvesting rights
were extinguished when Canada negotiated the 1930 Natural Resources
Transfer Agreements (Constitution Act, 1930)
without their participation or consent:
Horseman v. The Queen. Not until 1951 was a
provision included in the Indian Act
to prevent provincial encroachment on Treaty rights -- R. v. Taylor and Williams
-- but this did not stop many provinces from enforcing anyway and it did
not protect Treaty rights from federal regulation of fisheries and
migratory birds: R. v. Derriksan,
R. v. George.
In one case, the Supreme Court found that a Treaty right had been
bargained away by Canada before the Treaty had even been signed: R. v. Sikyea." (http://www.bloorstreet.com/200block/brintro.htm)

It was not until section 35 of the 1982 Constitution
Act, that suddenly government's went "Oops, perhaps there is some
injustice." Is this not closing the station door after the train has
left? The increasingly complex tapestry of Canadian Indigenous law
renders the understanding of Indigenous/Government relations confusing
and unsatisfying. There is no unifying common theme, as it is deliberate
strategy to divide and negotiate rather than enact a cohesive Indigenous
policy that covers social, economic and political positions for Native
people in an equal way. To do this, places tribal communities in a
powerful position to change the face of Canadian politics.

DEFINITIONS

SELF-DETERMINATION

Determination or decision-making according to one's own mind or will,
without outside influence but within the body politic of the
Nation State. The right of Native people to decide upon their own
political status, agenda and form of government without outside
influence. This includes a wide variety of
Internal
Rights.

Full voice
within the legal system of the overall nation state

Control
over natural resources

Appropriate
ways of preserving and protecting Indigenous culture

Visible
partner or participant with strong powers within overall national
polity

Right to
administer own institutions, social welfare, police, education.

SOVEREIGNTYSupreme and
independent political authority. This includes
External
Rights.

RIGHTS
FOR RESERVES, OR RIGHTS TO INDIGENOUS TITLE, THAT IS THE QUESTION

Problems in providing a
solid economic base plague most self-government plans; Many Native
groups reject the idea that their self-government jurisdiction would
extend only to their reserve (crown) lands. They prefer to tie their
political renewal aspirations to self-government issues that address
aboriginal title, resource allocation in their traditional territories,
which does not necessarily mean a reserve.

In other words, is it self-government for
Indian Nations or self-government for Indian reserves?Some Native
groups wish to remain under the Indian Act seeking only greater
control over their own affairs. It is a complicated issues. Read
on...........

QUOTE

Gordon Peters, the Executive Director of the
Centre for Indigenous Sovereignty, says that sovereignty is
critical to the survival of the coming generations of Aboriginal
children throughout Canada.

"Governments in the Americas have demonstrated that they do not have the
solutions required for Indigenous peoples to reinvigorate their
communities so that children grow up in healthy environments." Peters
says that, contrary to stereotypes, Aboriginal peoples lived in stable,
loving and healthy communities for centuries throughout the Americas.
"Governments in North and South America should understand that it is in
their best interest to allow Aboriginal peoples to restore political and
economic self-reliance to their societies."

Sounds like any other country! These attributes are
what it is to be First Nations as well.

INTERESTING NOTES

NOTE 1: The Charter of
Rights and Freedom contained in the 1982 Constitution Act created a new
level of appeal for Native People in terms of violations of Aboriginal
rights, the Supreme Court. Prior to 1982, appeals could be made only to
the House of Commons, the very body who set the sanctions in the first
place!

NOTE 2:Many Native
groups reject the idea that self-government jurisdiction extend only to
their reserve lands, thereby tying self-determination aspirations to
settlement of land claims over their current territories. In other
words, is it self-government for Indian Nations or self-government for
Indian reserves?

NOTE 3:
Some Native
groups wish to remain under the Indian Act seeking only greater control
over their own affairs.

NOTE 4:
A Court case to watch: On March 6, 2002, the Haida of British Columbia
launched a lawsuit with the B.C. Supreme Court for hereditary
title/ownership of the Queen Charlotte Islands. The suit if the first of
its kind because it includes surrounding waters and offshore rights (oil
and gas reserves). It will be the first Indigenous title lawsuit since
the 1997 landmark Supreme Court of Canada decision in Delgamuukw vs the
Queen. In this case the Supreme Court broadened the definition of
Aboriginal Rights by giving greater weight to oral histories previously
dismissed by lower courts. It also extended the principle of indigenous
title to include ownership of land.

Note 4: The Indian
Act is amended(1927) to prohibit Native people from using Band
funds to launch land claims actions.

Note 5: The Federal
Government calculates the cost of satisfying all Indigenous land
claims at $200-billion dollars.

WHEN
THINGS STARTED TO CHANGE FOR NATIVE PEOPLE

In 1973, the terms,
"Land
Claims" and "Aboriginal
Rights" first
appeared in a landmark Supreme Court ruling. British Columbia's Calder
Case (named after Nishga’a Leader, Frank Calder) asked the Supreme
Court to review the existence of "Aboriginal title" over landshistorically
occupiedby the
Nishga’a. In a split decision, the Supreme Court acknowledged the
existence of some inalienable Aboriginal rights (meaning, something that
may not be taken away or transferred) although they did not
agree that title continued to exist in British Columbia. Their decision
was based on two points:

That territorial
rights of Native peoples existed under the Royal Proclamation of
1763;

That territorial
rights existed because of ancestral occupancy of these lands.

The Government of
Canada, had up to this time completely rejected any suggestion that
Native people had any rights at all. This forced the government and all
subsequent governments back to the negotiating table.

Since 1973, Aboriginal
rights have expanded to include a broad range of economic, social,
cultural and political claims. At the root of these expanded claims lies
the demand for legal recognition as, at best, sovereign nations,
at worst Aboriginal title, which includes the
inherent right to self-government because of historic occupation of
North America. Therefore, a separate
land base within a separate political
jurisdiction is fundamental to Native self-government -in other words, a third level of government at the
federal level.

SELF-GOVERNMENT
ALSO INCLUDES:

Aboriginal
Title
(Ownership)to, at least, reserve land including surrounding water,
resources such as fish, wildlife, oil, gas, timber, ore. Unable to
trust the time honoured tradition of the Oral Narrative of First
Nations people, the Courts have traditionally relied on the European
method of proof of traditional occupancy of specific land using
written records. Prior to European occupancy, there were no written
records as Native people descended from oral traditions. Even when written records existed, the trend was to
limit rights to historical uses of land and resources. Outright
ownership would eliminate such patriarchal and racist practices.
(See Note 2 and 4).

A
New Covenantthat recognizes the
rights and responsibilities of Indian, Inuit and Metís as distinct
peoples and cultures. This covenant would affirm their rights and
responsibilities as self-determining nations and societies within
Canada. In other words, an end to all assimilationist policies and
practices. The Charter of Rights and Freedoms does not go far
enough.

Section
35 of the Constitution Act states:
"The existing aboriginal and treaty rights of Aboriginal peoples
of Canada are hereby recognized and affirmed." Section 37, states
that federal and provincial members should meet within one year to
directly address issues affecting Native people.

Section 25
of the Charter of Rights and Freedoms ensures that ‘existing’ Aboriginal rights are not adversely
affected by the Charter of Rights and Freedoms particularly those
recognized by the Royal Proclamation.

Financial
and economic developmentof
reserve lands. As reserve land is crown land, economic development
is not possible because Native people cannot acquire bank loans or
other financial assistance; without ownership the land cannot be
used as collateral.

A separate
constitutionor an amendment to the 1982 Canadian
Constitution
Act. It is not enough to simply affirm the principle of Aboriginal
self-government in the constitution. All too often, intransigent
governments at provincial and federal levels have found ways to
either ignore or resist implementing the rights of Aboriginal
peoples. If self-government is to become a reality in Canada, then
both federal and provincial governments need to be constitutionally
obliged to negotiate and implement the terms with Aboriginal nations
and peoples. This calls for the recognition of Aboriginal
self-government as an enforceable right in the constitution.

On par standard of
livingon reserves to that of mainstream Canada. (2284 reservations
including 1610 in British Columbia)

The right to
determine own institutions.In other words, more control over family
law, child welfare, education, social services, policing.

The right to make
lawsand to govern their members and the affairs of their people.

The right to
determineband
eligibility.

The right to
exemption from any direct or indirect taxation levied by other
governments.

The right to move
freelywithin traditional lands regardless of territorial,
provincial or international boundaries (including crossing into the
United States).

End to poverty and
violenceagainst women and children.

Women -
Protection and
promotion of women’s social, economic and cultural rights with equal
rights in all things.

Immediate settlement
of all claimsregarding Residential School abuses.

Removal of the
Indian Act(contingent upon receipt of Aboriginal Title). (See Note
3.)

Seeking joint
relationships concerning matters of international relations with
other First Nations.

Approval of all
territorial changes (boundaries, incursions due to gas/oil
pipelines, new mines, roads/highways) that directly concernNative
people.

Participating
equally in the political affairsof the State, therefore,
more proportionate representation at both
the Federal and Provincial levels by means of a guaranteed number of
elected seats in the House of Commons.

RECENT
RULINGS ON THE VALIDITY OF THE INDIGENOUS
ORAL NARRATIVE

Unable
to trust the time honoured tradition of the Oral Narrative, that is the
cultural, historical and spiritual grounding of First Nations, Courts
have traditionally relied on the European method of decision-making:

Proof of traditional occupancy
of specific land using written records.

C

urrent trend is to limit
rights to historical uses of land and resources.

Governments avoid using the
term,INdigenous (IN - Latin meaning "Native to");
they use ABoriginal (AB-Latin, meaning "Away").
Aboriginal suggests that Native people, came from somewhere else
much like any other immigrant, and therefore do not have a
legitimate/legal claim to the land.

Three recent rulings have changed
this view somewhat:

1997
-In the Delgamuukw suit (British Columbia), the Supreme Court orders a
new trial. Treaty negotiations are thrown into turmoil because the Court
broadens the definition of Aboriginal Rights by giving greater weight to
oral histories previously dismissed by lower courts. It also extends the
principle of indigenous title to include ownership of land.

1999
-Canada’s Supreme Court ruled that the oral tradition
of Indigenous fishing rights should be acknowledged. If there were any doubts, the decision should be in favour of Indigenous people.

March 7,
2002 -Approximately 15,000 Cree and Dene people
from Alberta became the first Natives in Canada to secure absolute
("any time, any reason") tax-free status in a landmark Federal
Court ruling that strengthens treaty promises of long ago. Mr. Justice
Douglas Campbell declared that oral promises were equal to treaty terms.
The decision was based on ancestral oral understanding of Crown promises
in the signing of Treaty 8, in 1899. This decision builds on the Supreme
Court ruling of 1999 regarding fishing rights and the value of oral
tradition. Justice Campbell’s decision will be appealed.

MINI
RECENT TIME LINE

QUOTE:
"In 1868, men came out and
brought papers. We could not read them and they did not tell us truly
what was in them. We thought the treaty was to remove the forts and
for us to cease from fighting. But they wanted to send us traders on
the Missouri, but we wanted traders where we were. When I reached
Washington, the Great Father explained to me that the interpreters had
deceived me. All I want is right and just."

Red Cloud,
Lakota, 1822 - 1909
(Makhpiya-luta), April, 1870

1975

The James Bay And Northern Quebec Agreement
was a land claim settlement,
approved in 1975 by the Cree and Inuit of northern Quebec, and later
slightly modified in 1978 by the Northeastern
Quebec Agreement, through which Quebec's Naskapi First
Nations joined the treaty. The agreement covered economic
development and property issues in northern Quebec, as well as
establishing a number of cultural, social and governmental
institutions for Native people who are members of the communities
involved in the treaties. Therefore, by virtue
of the Agreement, these people
occupy the position of a distinct People, that is, communities with
a distinct culture, society, traditional land, history, attachment
to that land, political position, aspects of external recognition,
traditional law and culture set against that of the overall society
in Quebec and Canada.

Of course, all
North America's Native people can be considered distinct in terms of
culture, society, attachment to traditional land, and history, The
differences are whether or not such cultures are recognized by the
North American body politic. Even with recognition, it is still very
much on a limited basis.

1983

Native
Self-Government in Canada (Penner Report).This all-party
committee made several far-reaching recommendations. Particularly
important was the call for the federal government to establish a new
relationship with First Nations; that an essential element of this
relationship be recognition of Indian self-government, and that the
right to self-government be entrenched in the Canadian Constitution.

The committee
dismissed the Indian Act as ‘antiquated’ and "completely
unacceptable as a blueprint for the future." It further
recommended phasing out Indian Affairs replacing it with federal
grants and settlement of Native land claims to provide the required
economic base. First Nations governments would have control over all
Indian lands and resources and would have jurisdiction over many
matters affecting their members (education, social services). They
would become a distinct third order of government within Canada.The
Inuit would eventually achieve self-government on a similar basis.

1984

First
Ministers Conference - Trudeau "we are not here to
consider whether there should be institutions of self-government,
but how these institutions should be brought into being."

1984

Cree-Naskapi
(of Quebec) Act is essentially the achievement of self-government.

1985
- 1887

Prime
Minister Mulroney attempted to make the proposals regarding Native
sovereignty acceptable to the
provincial premiers. Both times, talks collapsed in rancor and
squabbling among the federal government, the provinces and leaders
of the four major Native organizations. The federal proposal for
full recognition of the Native right to self-government, without
full definition of terms and costs, was unacceptable to B.C., ALTA,
SASK, NFLD.

Interesting
Notes

Native
Self-government can be pursued without a constitutional accord,
through bilateral agreements between Natives and the federal
government. (I.e. Nisg'a agreement). NOTE:
The term 'treaty' is
no longer used; 'Agreement' is now the accepted term.

1986

The
Sechelt Indian Band Self-Government Act allowed for the Sechelt of
British Columbia to
receive title to their reserve lands, the right to draft their own
constitution and laws; they are no longer bound by the Indian Act.

1990
- May 31

Sparrow
Decision. The Supreme Court
of Canada issues a landmark ruling which states that Aboriginal rights
cannot be extinguished. It re-defines Indigenous peoples’ right to fish
for food ; social and ceremonial purposes. The ruling takes priority over
all other uses of the fishery by other individuals, subject to certain
overriding considerations such as conservation of the resource. It
concludes that provincial legislation cannot limit Native ancestral rights
even where the public interest is involved. The Supreme Court also sets
out the necessity of consulting with Aboriginal groups when their fishing
rights are affected.

1995

Government of
Canada adopts a negotiated approach to Indigenous self-government which
results in new arrangements to give Native communities the legitimate
tools they need to exercise greater control over their lives.

"Self-government arrangements will
recognize Aboriginal people's right to make decisions about matters
internal to their communities, integral to their unique cultures,
traditions and languages, and connected with their relationship to the
land and resources...government structure, land management, health care,
child welfare, education, housing and economic development. Negotiations
will be between Aboriginal groups, the federal government and, in areas
affecting its jurisdiction and interests, the relevant provincial or
territorial government."

1996

As a result of the OKA
crisis. The Royal
Commission Report on Aboriginal People is released. It is welcomed by
the Moderator and the General Council Executive as a message of
reconciliation between Aboriginal and non-Aboriginal peoples in Canada.
Part of the breakdown in this relationship, is described in the RCAP
report as the cultural superiority and policy of assimilation that finds
expression in the Indian Residential Schools. There is a significant
section to do with Indigenous Self-Determination which to this day has
been ignored by Ottawa.

1999
- April 1

Nunavut(means "our land" in Inuit) becomes Canada’s newest territory
in the eastern Arctic. There are two different Acts: the Nunavut Act and
the Nunavut Land Claims Agreement Act. The Nunavut Act is for the
establishment of a territory and the provision of a government. The
Nunavut Land Claims Agreement Act means the land claims agreement between
the Inuit and Canada. Iqaluit (formerly known as Frobisher Bay) becomes
its capital. (See Greenland Home Rule below)

1999
- October

The Mi’Kmaq and the
people of Esgenoopetitj attempt to exercise their Treaty Rights by fishing
for lobster. Non-Native fishermen respond by cutting lines and destroying
$210,000 worth of traps belonging to the people of Esgenoopetitj. The DFO
and RCMP take no action to prevent destruction of property or violence
directed towards the Mi’Kmaq people. The situation is tense, with
non-Native fishermen ramming boats and threatening with firearms. Two Mi’kmaq
men are seriously injured. Two years of negotiations with Federal
Fisheries commences. Despite a Supreme Court
decision affirming their Treaty Rights to make a moderate living from
fishing,they are threatened by constant Department of
Fisheries and Oceans (DFO) interference and harassment in their fishery.

2000

The
Nisga'a Agreement is a much more far-reaching version of the Sechelt
Agreement.

Interesting Note

The
Greenland Home Rule Act represents a pioneering effort to accommodate
Aboriginal aspirations for self-determination.
Since 1380, the Inuit of Greenland have been under Danish rule, and formally
Greenland was a colony until 1953. Since 1979, however, Greenland has
operated under the Home Rule Act which grants its 55,000 residents a fair
degree of autonomy from Copenhagen over its internal affairs. It does so,
however, without granting Inuit residents any greater or lesser political
rights over non-Inuit residents. Public monies for self-government are not
transferred on racial lines; fiscal transfers from Copenhagen go to the
Greenlandic government, which serves Inuit and non-Inuit Greenlanders alike.
Home Rule, therefore, is a form of public self-government, not Aboriginal
self-government. However, because Inuit residents make up 80% of the
population, they are in no danger of being outvoted by non-Native residents.
In this regard, the territory of Nunavut is similar to the Home Rule public
self-government model.

LAND CLAIMS

AN
INFORMED OPINION

"Historical
perspective cannot be ignored when trying to find a place for Indigenous
renewal in Canada. Grievances of the magnitude suffered by Native people colour every nuance of the negotiating process. In the past, Native
people have not been given cause to believe that the State really wants
and intends to negotiate in good faith. It would be obscene to
expect any group of people who have been choked by the mantle of
socio/political apartheid to cast aside hundreds of years of grievances
and oppression and think they will achieve equitable settlements. Such pretense
favours only the State and makes it non-accountable for part of its own
history. In others words, trust between parties is a major factor
in successful negotiations and trust is not something that historically
has been in evidence.

"Language
embodies a world view which is often taken for granted, and frames a
debate. Thus the wording of the expression
"land claim"
assumes in some way its justice. "Property rights"
are one way
a society organizes its affairs; they reflect the distribution of power
and influence - the class structure - within a society. Insofar as they
have been applied to Nature, such rights have presumed that one species
- humans - has the right to decide whether or not other animal species,
plant species, and the physical environment itself, have the
"right" to live or die. Clearly, to Indigenous people this is not an acceptable
view for a deeper environmentalism. Humans cannot and do not
"own"the
Earth. We make use of it, wisely or foolishly" (The Wild Path
Forward, Left Biocentrism, First Nations, Park Issues and Forestry
A Canadian View, by
David Orton)

To this day,
most intelligent people know that the founding of Turtle Island was based on the theft
of the land from the First Nations People and their Ancestors.
The awful irony, is that 'theft'
being one of the ten commandments did not seem to bother the
Christian imperialist forces in
their lust to conquer Turtle Island. In most countries theft is an indite-able offense but not, it seems, when it came to separating the
First Citizens from their ancestral homes.Afterall, we did sit down
to parlay in good faith, never believing for a minute that the other
side had a different agenda already planned out.

QUOTE:"This war did not spring up
on our land, this war was brought upon us by the children of the Great
Father who came to take our land without a price, and who, in our
land, do a great many evil things... This war has come from robbery -
from the stealing of our land."Spotted Tail
Brule/Sicangu, 1823 -1881

THE ROYAL PROCLAMATION OF 1763
- Click Fire

EARLY
TREATIES

With
minor differences, all federal treaties were similar. Indians agreed to
"cede, release, surrender and yield up" their rights to the
land in exchange for reserves, small cash payments, ammunition and
fishing twine, uniforms and medals for the chiefs, annual payments to
each band member and promises of continued hunting and fishing rights.In
other words, Indians received very little for their surrender of nearly
half of Canada’s land surface.

What is more,
it appears that there were great differences between what the Indians
were told they were signing and the actual written words of the
treaties. For example:

All
negotiations took place in English;
often the government translators
were enemies of the tribe involved in the negotiations, so translations were
deliberately skewed in favour of the federal government.

At the time
of the negotiations, the
Government of Canada knew something that First Nations did not --
the sale and acquisition of Rupert’s Land was needed to make way for the transcontinental railway;
it
involved promising what was still Native land(s) to the Hudson’s
Bay Company and Railway developers. The railway in turn would open
up the land for sale to European settlers.

Gifts such
as flags and medalsenhanced the illusion that treaties were pacts
of friendship and mutual assistance when there were, in fact, deeds
of sale.

Ultimately
the Crown claimed ownership of the landon which Treaties were based.

Not all
lands promised to First Nations were forthcoming. A number of specific
claims have arisen over unfulfilled treaty promises. 37 bands in
Saskatchewan claiming additional treaty land entitlements; Blackfoot
received over 1.5 million dollars in 1984 for cattle promised a
century earlier; Clause in Treaty 6 which calls for a medicine chest
to be kept at the agent’s house was interpreted by the Natives as
free medical care - a viewpoint not upheld in the courts.

Treaties as
far as First Nations were concernedwere to, "last as long as
the Sun shines and the waters flow."

A more
widespread grievance is the abrogation of treaty-promised hunting
and fishing rights. Entrenchment of treaty rights in the
constitution was intended to halt further erosion but has not been
entirely successful because, among others things, it does not
restore previously lost rights. A recent case in point is the
Supreme Court ruling in 2000 that allowed the Mi’kmaq of the
Maritimes fishing rights without government sanction or censure.
Throughout the Summer of 2000 to present day, there were armed
standoffs, and other violence in a place called Burnt Church, Nova
Scotia, as non-Native fisherman protested the rights that had been granted to the Natives.

Modern
treaties in Canada,thanks to Section 35 of the 1982
Constitution Act, now have greater legal protection than
ever before, and modern land claims settlements are Treaties
for this purpose. The reason for this was the introduction of the
Charter of Rights and Freedoms as part of the 1982 Constitution
Act. Native people now had a higher level of appeal than
Ottawa -- the Supreme Court of Canada.

The
historical treaty processwas heavily weighted in favour of the
Government, but Canadian courts have never set aside a Treaty or
surrender on that ground.

By
1923,there
were more than 50 such treaties. Where the government saw these
agreements mainly as instruments for freeing lands for settlers, Natives
saw (and still see) them as defining their relationship with the
Dominion on a continuing basis.

IMPORTANT
POINT: It is very doubtful that Natives and Europeans had the same
understanding of the land surrender treaties. In most Native cultures,
land was not a commodity to be bought and sold.Evidence
from Native testimony shows that they understood these agreements to be
matter of sharing, of friendship, of mutual respect, and not final and
irrevocable sales, and ultimate loss of ancestral territory.

QUOTE:
"I
am tired of talk that comes to nothing. It makes my heart sick
when I remember all the good words and all the broken promises.
There has been too much talking by men who had no right to talk.
It does not require many words to speak the truth."(Chief Joseph,
1830-1904,
Nez Perce)

EARLY TREATY TIMELINE (Note: After
1970, the term 'treaty' was replaced with 'Agreement')

1764

Crown
signs two treaties with the Huron/Wyandot and Seneca Nations for use of
the portage at Niagara (usually referred to as the Niagara Treaty).

1784

Haldimond
Purchase: approximately three million acres on the Niagara Peninsula, is
obtained from the Native peoples of the area. Notably, this cession
(usually referred to as the Haldimond Grant) provides the land base for
the Six Nations of the Grand River Reserve.

1764-1806

Crown
acquires shoreline lands along the upper St. Lawrence and lower Great
Lakes, from Pointe au Baudette to Lake St. Clair.

1815-1827

Crown’s
land holdings increases with the purchase of seven million acres,
cutting a wide swath from the Ottawa River to the eastern shores of
Georgian Bay. This includes six major land cession agreements with
Native Nations after the War of 1812: the Rice Lake Purchase of 1818;
the Rideau Purchase of 1825; the Lake Simcoe-Nottawasaga Purchase of
1818; the Ajetance Purchase of 1818; the Long-Woods Purchase of 1827;
and the Huron Tract Purchase of 1827.

1836

Sir
Frances Bond Head negotiates a deal with the Ojibwa for twenty three
thousand islands of the Manitoulin Island chain, as well as with the
Saugeen for one and a half million acres on the Bruce Peninsula. In
either of these arrangements, no provision was made for the payments,
though the Bond Head Treaties stipulated that the Crown would protect
the lands for Native peoples.

1850

Robinson
Huron and Robinson Superior treaties. These surrender aboriginal title
to a vast territory extending from Lake Huron northward to Rupert's
Land. Native signatories receive a 2,000 pound cash settlements as well
as annuity payments. They were given the right to hunt and fish on all
lands except for those occupied by individuals or companies under permit
of the province.

IMPORTANT
NOTE

The
Robinson treaties establish a benchmark for modern treaty-making by
including such rights and fishing and hunting, as well some form of cash
annuity. Also, the establishment of reserves, promises from the
Government to sell reserve lands and mineral rights only insofar as they
were of benefit to the Native people became vogue. The government also
promised to make the monies received for mineral rights retroactive.

1854

British
Columbia: fourteen small treaties on Vancouver Island negotiated by
Hudson’s Bay Factor, James Douglas.

1862

William
McDougall successfully renegotiates with the Ojibwa of Manitoulin Island
for 600,000 acres (usually referred to as the Manitoulin Island
Cessions). Sufficient numbers of Ojibwe did not settle on the lands
under the 1836 agreement. Further negotiations resulted in over half a
million acres being opened up to European settlers.

Treaty
2: "Manitoba Post Treaty" is signed with the Chippewa and
others. The land ceded involves central Manitoba, southeastern
Saskatchewan and southwestern Manitoba.

October
3, 1873

Treaty
3: "Northwest Angle Treaty", was signed on October 3, 1873
with the Saulteaux, Ojibway and other Indians, and involved the extreme
southwest of Ontario lying west of the Great Lakes and a small portion
of southeastern Manitoba. The area ceded totalled 55,000 square miles.

September
15, 1874

Treaty
4: "Qu'Appelle Treaty, was signed on September 15, 1874 with
Cree, Saulteaux and others, mainly in southern Saskatchewan. The area
ceded was 74,600 square miles.

September
24, 1875

Treaty
5: "Winnipeg Treaty" was signed on September 24, 1875 with
Saulteaux and Swampy Cree tribes and others. It involved northern
Manitoba and part of Ontario north of Treaty 3 lands. The area ceded was
100,000 square miles.

August
23, 1876 and September 9, 1876

Treaty
6:Plain and Wood Cree. It was signed on two dates because of Cree
Chief, Big Bear’s initial refusal to sell of Cree ancestral land. It
involved central Alberta and central Saskatchewan. The area ceded was
121,000 square miles.

Treaty
8:Cree, Beaver, Chipewayan and others. It involved northern
Alberta, the Northwest Territories south of Great Slave Lake, and
northeastern British Columbia. The area ceded was 324,900 square miles.

June
12, 1905

Treaty
9:Crown Dominion of Canada, the Crown Province of Ontario, and
Ojibway, Cree and others. It involved that part of Ontario draining into
Hudson Bay. It was paid by Ontario. The area ceded was 90,000 square
miles.

August
28, 1906

Treaty
10:Chipewyan, Cree and others in northern Saskatchewan on August
28, 1906. The area ceded was 85,800 square miles.

June
27, 1921

Treaty
11:Slave,
Dogrib, Loucheux, Hare and other Indians. It involved the
NWT north of Great Slave Lake. The area ceded was 372,000 square miles.

1923

Williams
Treaties which extinguish Native title to the last un-surrendered
lands in southern Ontario.

Here
endeth the treaty-making process in Canada!! Onto Agreements

RESERVE
LANDS

There
are nearly 2300 reserves in Canada, approximately half of which are in
British Columbia.

They are
occupied, and to some extent, governed by 609 First Nations or Bands.

The
largest reserve is the Blood Reserve in southern Alberta.

The
largest in population is the Six Nations of the Grand Reserve near
Brantford, Ontario.

All
reserve land is governed by the Indian Act, especially by its land
provisions, although only about half of the communities actually apply
those provisions in allotting reserve lands to members.

Where
the statutory provisions are not used, individual land tenure is
either unregulated or governed by custom and consensus.

The community has ‘surrendered’
it to the Crown for sale and the non-Native has an agreement with the
Crown to purchase the land.

The community has ‘designated’
it for leasing and the individual has entered into a proper
lease.

The Minister of Indian
Affairs and Northern Development has leased it for the benefit of an
individual Native locatee.

The Minister has
granted a permit for more limited used (there is a case going before
the Supreme Court of Canada to determine the extent of rights the
Minister can grant under permit).

THE PRICE OF
PROGRESS

By the mid 19th century ,the
original purpose of treaty-making, that being friendship and peace, and
the so-called civilization of the savages was almost completely
subordinated to the insatiable greed for power and expansion. Land
acquisition was the means by which power would be achieved. First item on
the agenda after 1867 (Confederation) was to open the west, thereby
creating a federated state from sea to sea. Almost immediately the grand
plan of a national railway was underway; European immigration to supply a
badly needed workforce boomed; an agricultural economy was created in the
west, which required land.

Native people were impediments to this
economic and geographical progress juggernaut. They had to be moved out of
the way and quickly. However, Native people still held title to most of
the land. That problem was solved by an 1870 British-Order-In-Council
which brings the Northwest Territories and Rupert’s Land into
Confederation, thereby placing it under the jurisdiction of the Royal
Proclamation.

... "upon the transference of the
territories in question to the Canadian Government, the claims of the
Indian tribes to compensation for lands required for purpose of settlement
will be considered and settled in conformity with the equitable principles
which have uniformly governed the British Crown in its dealings with the
aborigines."

QUOTE:"The Indian
is of the soil, whether it be the region of forests, plains, pueblos, or
mesas. He fits into the landscape, for the hand that fashioned the
continent also fashioned the man for his surroundings. He once grew as
naturally as the wild sunflowers, he belongs just as the buffalo
belonged...."

Luther Standing
Bear, Oglala Sioux
1868-1937

FEDERAL
LAND CLAIMS POLICY - MODERN TIMES

Political,
legal/judicial and constitutionally negotiated agreements between the
federal government (sometimes involving the provinces and territories),
and First Nations people that usually cover rights to land, fishing,
hunting and logging access, compensation, areas of jurisdiction,
governance, co-management regimes, resource royalty revenue
arrangements, etc. The federal government recognizes two broad classes
of claims:

A: COMPREHENSIVE
LAND CLAIMS:

There is
wide scope in this category because claim is based on the recognition that
there are continuing Indigenous rights to land and natural resources. Such
claims arise in those parts of Canada where Indigenous Title has not been
dealt with by agreement (treaty) and other legal means. The objectives
are:

Exchange
undefined rights for defined packages that are constitutionally
protected;

Lawsuit to
Watch for:March, 2002,
Haida of British Columbia launched a lawsuit
with the B.C. Supreme Court for hereditary title/ownership of the Queen
Charlotte Islands (Haida G'wai). The suit is the first of its kind
because it includes surrounding waters and offshore rights (oil and gas
reserves). It will be the first Indigenous title lawsuit since the 1997
landmark Supreme Court of Canada decision in Delgamuukw vs the Queen.

Under
Negotiation: Council for Yukon Indians; Dogrib; Conseil de Atikanekw
des Montagnais; Labrador Inuit Association; Innu; 30+ in British Columbia.Mississauga of the New Credit in Southern Ontario.

B: SPECIFIC LAND
CLAIMS

These are grievances
that First Nations may have relating to the administration of First
Nations lands and other assets under the Indian Act (includes broken
promises. Two centuries ago, Indigenous peoples controlled most of the
world’s ecosystems; their territory has shrunk to between 12% and 19%
of the Earth’s land surface. Their objectives are to:

Unfulfilled
treaty promises.

Unfulfilled
fiduciary obligations: Breach of Obligation under Indian Act; Mis-administration
of Indian Funds/assets; Illegal disposition of Indian land.

1625
-One
of the pioneering natural rights theorists of the 16th and
early 17th centuries, Dutchman, Hugo Grotius in his treatise, On the Law of War
and Peace concludes that unoccupied lands in America can legally be
claimed by the nation that "first discovers" and takes
possession of them. This does NOT include Indigenous occupation.

1650 -Franciscus
de Victoria, a Spanish Dominican in his Roman civil law treatise,
states: "The Indians are the true owners of America because they
have occupied these lands from time immemorial."

1670 -Charles II of
England grants to his cousin Prince Rupert an area around Hudson’s
Bay, known as Rupert’s land, and forms the Hudson’s Bay Co.
Prince Rupert never in his life sets foot in Canada .

1672- Samuel
von Pufendorf, a Lutheran clergyman states that the mere fact of knowing
of the existence of something is not sufficient in and of itself to
establish title of ownership. "Discovery accords nothing more than
the right to potential appropriation, the erection of crosses, the
establishment of the arms of the king....Native rights are
inalienable."

1755
- Swiss
Jurist, Emmerich de Vattel, in a civil law treatise bases title and
right not on ancestral occupation but on its use, which constitutes
ultimate justification for its use. He defines the right of colonization
in the Americas by the fact that Native peoples occupied immense tracts
of land ‘nomadically’ and, therefore, do not have the right of
ownership. The particular needs of the Europeans through their sustained
use, legitimizes their claims subsequent right of ownership. "The
savages should be kept within narrow bounds."

1850-1854 -James
Douglas, Chief Factor of the Hudson’s Bay Company and Governor of the
colony negotiates agreements with individual bands, extinguishes Native
title to the lands around Victoria, Nanaimo and Fort Rupert. In return
for surrendering land which becomes "the Entire property of the
White people for ever", the Indians are confirmed in possession of
their village sites and fields, assured that they will be "at
liberty to hunt over the unoccupied lands, and to carry on fishing as
normal." They are also given small payments. Victoria is obtained
for 371 blankets. Shortage of funds keeps Douglas from conducting
further agreements, and most of British Columbia remains non-treaty.

1871-1921-Eleven
so-called numbered treaties decided, in which Indigenous people in
effect give up over three-quarters of Canada's land mass.

1876-Indian
reserves (‘reservation’ is American term) are set aside
according to the Indian Act. Title to the land is held by the Crown. A
band cannot sell or otherwise dispose of reserve land without first
ceding it to the federal government.

1888 -
Landmark St.
Catharines Milling case is decided by Judicial Committee of the Privy
Council in England. The Privy Council rules against this assertion of
federal jurisdiction over treaty lands citing title which is ascribed in
the Royal Proclamation. As a result, Ottawa needs provincial consent to
establish reserves under Treaty, and more importantly, provincial
concurrence to sell reserve lands if they are surrendered.

1927 -A
special Joint Committee of the Senate and House of Commons holds that
Native people in B.C. have no claim to lands in B.C.

1927 -
The
Indian Act is amendedto prohibit Native people from using Band
funds to launch land claims actions.

1971- Quebec decides
to forge ahead with the James Bay hydroelectric project. It forces the
Cree of James Bay and the Inuit of Nunavik (northern Quebec) to go to
court to stop the project until Indigenous land claims are settled. They
are successful in getting a temporary injunction, which forces the
provincial government back to the negotiating table.

1973 - British
Columbia's landmark Calder Case (named after Nishg’a
Leader, Frank Calder) in 1973 introduces the terms "land
claims" and "Aboriginal rights" into the everyday
language of Canadians. The case, is brought to court by Chief Calder of
the Nishg’a Indians of northwestern British Columbia, and asks that
existence of "Aboriginal title" claimed over lands
historically occupied by the Nishg’a be reviewed.

In a split decision, the Supreme Court of
British Columbia acknowledges the existence of Aboriginal rights
although they do not agree that the title continues to exist in British
Columbia. Title is based on the occupation of lands. The territorial
rights of Native peoples exists not only under the Royal Proclamation of
1763, but also because of "Indian title" from ancestral
occupancy of these lands.

1973 -The
Office of Native Claims is opened in Ottawa to receive proposals for
negotiation. Two types: Comprehensive (based on areas
where Aboriginal title has never been extinguished through treaty or
other legal process); Specific (involve claims for
fulfilment of treaty provisions and promises or relate to the management
of Indian lands and assets under the Indian Act).

1973
-
The
first modern land agreememt in Canada, involving the province of Quebec,
the federal Government, the James Bay Cree, and the Inuit of Nunavik, is
signed. The terms of the treaty became the starting point for all
succeeding negotiations across Canada.The
word 'Treaty' is replaced with 'Agreement'.

1977 -James Bay Land Claims
Agreement becomes law. Cree and Inuit in northern Quebec are given $235
million over twenty years, community ownership of small areas of land,
and exclusive hunting, fishing and trapping rights over larger areas. In
return they surrender Indigenous rights to about 60% of Quebec territory
making way for the James Bay Hydro project. It is now viewed as a poor
agreement as Native interests have largely been ignored by Ottawa.

1986 -Sechelt
Indian Band Self-Government Act in which the Sechelt receive title to
their reserve lands, and the right to draft their own constitution and
laws. They are no longer bound by the Indian Act.

1990 -Oka
barricade is erected by Mohawks from the Kanestake settlement. Its aim
is to halt expansion of a golf course on land the Mohawks claim as their
own.

July 11 -OKA
crisis begins in earnest. The 78-day standoff between armed Mohawks of
Kanesatake and Kahnawake, and thousands of police officers and solders.
At 8.45 a.m. on July 11, a gunfight erupts, killing police officer,
Corporal Marcel Lemay. No one knows who fires the first shot. The
Canadian Government repeatedly tries to quash media coverage. Oka
triggers nationwide acts of civil disobedience, including: Southern
Alberta’s Oldman River, RCMP officers run for cover after being fired
upon by unseen assailants. Peigan Natives protesting construction of a
dam are blamed; Northern Ontario: Pays Plat band members barricade the
CP Rail mainline in a land settlement dispute; In B.C., police drag Stl’atl’mx
Nations members from railway tracks to end one of many blockades erected
during the summer of 1990.

1990 -Sparrow
Decision. The Supreme Court of Canada issues a landmark ruling which
states that Aboriginal rights cannot be extinguished. It re-defines
Indigenous peoples’ right to fish for food ; social and ceremonial
purposes. The ruling takes priority over all other uses of the fishery
by other individuals, subject to certain overriding considerations such
as conservation of the resource. It concludes that provincial
legislation cannot limit Native ancestral rights even where the public
interest is involved. The Supreme Court also sets out the necessity of
consulting with Aboriginal groups when their fishing rights are
affected.

1991 -In
Delgamuukw,
the British Columbia Supreme Court dismisses the Gitskan-Wet’suwet’land
claim. Chief Justice Allan McEachern rules that two tribal groups in
northern B.C. have no claim to ownership of the land or jurisdiction
over the territory in which they live. They do, however, have "unextinguished,
non-exclusive aboriginal rights, other than right of ownership" to
much of their traditional territory including Crown land.

1997 -In the
Delgamuukw
suit (British Columbia), the Supreme Court orders a new trial.
Treaty negotiations are thrown into turmoil because the Court broadens
the definition of Aboriginal Rights by giving greater weight to oral
histories previously dismissed by lower courts. It also extends the
principle of indigenous title to include ownership of land.

1999 -
Nunavut(means "our land" in Inuit) becomes Canada’s newest
territory in the eastern Arctic. There are two different Acts: the
Nunavut Act and the Nunavut Land Claims Agreement Act. The Nunavut Act
is for the establishment of a territory and the provision of a
government. The Nunavut Land Claims Agreement Act means the land claims
agreement between the Inuit and Canada. Iqaluit (formerly known as
Frobisher Bay) becomes its capital.

1999-The
Federal Government calculates the cost of satisfying all Indigenous land
claims at $200-billion dollars.

2000- Bill
C-9 - Nisga’a Land Agreement is enacted. In settling their
claim the Nishg’a settle for approximately 1/10th of their territory
(1,992 square kilometers in lower Mass Valley). Nishg’a continue to be
Indigenous people under the Constitution Act of 1982; Lands owned by
Nishg’a will no longer be reserve lands under Indian Act (tax free
status extinguished).

QUOTE:
"The
earth is the mother of all people, and all the people should have
equal rights upon it. You might as well expect the rivers to run
backward as that any man who was born a free man should be contented
when penned up and denied liberty to go where he pleases." Chief Joseph, 1830-1904, Niimipuu

Photo: Thunderbird in the role of, "In Who Lise" in Thunder Rolling In The Mountains.
The story of the flight of the Niimipuu, left by Chief Joseph and
his brother, Oolikut.

KEEP GOING YOU ARE DOING
WELL BY STAYING IN THE MOMENT TO READ THIS PAGE

QUOTE:"Perhaps you think The Creator sent you here to dispose of us as you see
fit. If I thought you were sent by The Creator, I might be induced to
think you had a right to dispose of me. Do not misunderstand me, but
understand fully with reference to my affection for the land. I never
said the land was mine to do with as I choose. The one who has a right
to dispose of it is the one who has created it. I claim a right to live
on my land and accord you the privilege to return to yours. Brother, we
have listened to your talk coming from the father in Washington, and my
people have called upon me to reply to you. And in the winds which pass
through these aged pines we hear the moaning of their departed ghosts.
And if the voices of our people could have been heard, that act would
never have been done. But alas, though they stood around they could
neither be seen nor heard. Their tears fell like drops of rain. I hear
my voice in the depths of the forest, but no answering voice comes back
to me. All is silent around me. My words must therefore be few. I can
say no more. He is silent, for he has nothing to answer when the sun
goes down."

WHEN LAND CLAIMS AND
TREATY RIGHTS COLLIDE

"Land claims"
and "treaty rights" present conflicts when developing a
wilderness strategy for Canada. Whereas, Specific claims deal with
unfulfilled treaty promises or government mis-administration,
Comprehensive land claims cover very large land areas; for example, the
first was the 1975 James Bay and Northern Quebec Agreement.

"Why
[Native people] generally oppose "allocations for nature",
Native land claims, are often about the "harvest" of wildlife
and "economic" opportunities. There seems to be little regard
for sanctuaries - or what the Land Claims Work Group of the Federation
Of Ontario Naturalists called "allocations for nature." (D.
Orton)

THE
TRAVESTY OF GREED & ECONOMIC BOTTOM LINE CAUSES THE TREE OF LIFE TO
WEEP

Economic
greed by non-Natives is the principle contributor to the near extinction
of both the Pacific and Atlantic fisheries. It will take decades, if
ever, to recoup the terrible loss.

Rampant
clear-cutting of forests and woodlands destroys eco-systems, pollutes
the air and displaces human communities, in particular Indigenous
societies.

It is common
knowledge that the wholesale destruction of rain forests, the loss of
animal species at the rate of fifty a day and devastation of other
eco-systems, destroys the fabric of human life. We are, in other
words, committing mass suicide. David Orton says, "From an
eco-centric perspective, we need total land reform in Canada and
throughout the world, so that land, water, and air are seen as the
common inheritance of all living beings."
If we view the
environment as our inheritance, it will create value in the minds of all
of us who rely on its health so that we remain healthy.

The problem we
are faced with is that there is no equality in our inheritance, and a
large group of avaricious, global family members want more than their
share!

Traditional Native
territories often include existing provincial and federal parks and
other protected areas, or some portion of them.

Natives were often
physically dislocated when parks or other protected areas were
established.

The primacy of treaty
rights and land claims is asserted in the Canadian Constitution.

Much crown, i.e. public,
land covered in forests has been handed over to the forest industry,
on long-term renewable leases.

At least in southern
Canada, most land "unoccupied" by humans, has in some sort
of park status.

For all of these reasons, in
many parks indigenous rights to hunt, fish and trap as part of land
claims are being pursued, and wilderness or wildlife sanctuaries closed
to human "use" are being opposed. Governments at the federal
and provincial levels seem increasingly willing to compromise the
ecological integrity of the poorly defended parks system in Canada for
native land claims. This is politically easier than changing or
challenging the well-defended "allocations" of non-park crown
land, which have been committed to the timber industry on a long-term
basis. Generally, aboriginal peoples in Canada are asserting their
"rights" to hunt, trap, and fish year-round, as in
"traditional" times, but using modern technologies of
destruction and transportation, and in a country now with a population
of around 30 million people." (D. Orton)

INTENT OF INDIGENOUS
SOCIETIES TO ASSERT THEIR RIGHTS

The general
intent by Indigenous people to assert their trapping, hunting and
fishing rights is so that personal and community use, as part of a
traditional lifestyle is satisfied. By definition, following a
traditional lifestyle, carries with it the awareness of the importance
and need to follow responsible conservation and ecological practices.
"Take only what you need." the Ancient Ones instructed.
"Leave the rest for your children and your children's
children so that Mother Earth's heartbeat will remain strong."

Indigenous
societies inherently understand, and have tried to teach the government
and other decision-makers that controlled harvesting of fur-bearing
animals, for example, not only strengthens the animal populations, but
also ensures their survival. "I ask you
now Sister, I ask you now, Brother, who speaks for wolf?"

LAST WORD TO
WOMEN

QUOTE:"When
we Indians kill meat, we eat it all up. When we dig roots, we make
little holes. When we build houses, we make little holes. When we burn
grass for grasshoppers, we don't ruin things. We shake down acorns and
pine nuts. We don't chop down the trees. We only use dead wood. But the
white people plow up the ground, pull down the trees, kill everything.
... the White people pay no attention. ...How can the spirit of the
earth like the White man? ... everywhere the White man has touched,
it is sore."